BVA9508558
DOCKET NO. 93-11 102 ) DATE
)
)
On appeal from the decision of the
Department of Veterans Affairs Regional Office in Newark, New
Jersey
THE ISSUE
Whether new and material evidence has been submitted to reopen a
claim of entitlement to service connection for a bilateral knee
condition.
REPRESENTATION
Appellant represented by: American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
P. M. Lynch, Associate Counsel
INTRODUCTION
The veteran served on active duty from November 1943 to February
1946.
This matter comes before the Board of Veterans' Appeals (Board)
on appeal from an August 1992 rating decision by the Department
of Veterans Affairs (VA) Regional Office (RO) in Newark, New
Jersey that denied the veteran's petition to reopen his claim of
entitlement to service connection for a bilateral knee condition.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that the RO committed error in denying his
petition to reopen his claim for service connection for a
bilateral knee condition. In particular, he contends that he
suffered from a bilateral knee condition during service and that
he continues to experience symptoms associated with this
condition.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims file.
Based on its review of the relevant evidence in this matter and
for the following reasons and bases, it is the decision of the
Board that new and material evidence has not been submitted to
reopen a claim for service connection for a bilateral knee
condition.
FINDINGS OF FACT
1. The RO denied service connection for a bilateral knee
condition in December 1947 on the grounds that the condition was
not incurred during active service. Since no appeal was filed,
the decision became final.
2. No evidence raising a reasonable possibility that a bilateral
knee condition was incurred during service has been received
since the December 1947 RO decision.
CONCLUSIONS OF LAW
1. The December 1947 rating decision denying service connection
for a bilateral knee condition is final. 38 U.S.C.A. §§ 7105
(West 1991).
2. Evidence received since the RO denied entitlement to service
connection for a bilateral knee condition in December 1947 is not
new and material and the veteran's claim for this benefit has not
been reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R.
§ 3.156(a) (1994).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Service medical records indicate that the veteran was repeatedly
seen during service complaining of multiple conditions, including
painful knees. Significantly, there were no objective medical
findings to substantiate his complaints of knee pain.
In particular, an x-ray in March 1945 was negative for any knee
abnormality. In April 1945, the veteran insisted that his
bulging vastus intermedii were "disablingly" painful. Notes made
in conjunction with an orthopedic consultation stated that the
bulgings on the medial aspects of both knees were of no clinical
significance. Significantly, it was also recommended that the
veteran be reported to his commanding officer if he continued to
seek treatment for his knees at sick call.
In June 1945, the veteran was afforded a psychiatric examination.
Similarly, the psychiatrist found no grounds for his physical
complaints and noted that there was no basis for his repeated
visits to sick call. The veteran's demeanor was described as
uncooperative, sullen and ugly. He refused to perform exercises
as recommended by his therapist. It appears that the
psychiatrist considered rendering a report to the effect that he
be separated from service.
At the time of his separation examination in February 1946, the
veteran once again complained of a knee condition.
Significantly, the physician examined the veteran's knees and
reported no abnormalities.
In a rating decision in December 1947, the RO denied the
veteran's claim of entitlement to service connection for a knee
condition on the grounds that the condition was not incurred
during active service. The foregoing evidence clearly supports
the RO's finding that the veteran did not incur a bilateral knee
condition during service. Since no appeal was filed by the
veteran, the RO's decision denying his claim became final.
38 U.S.C.A. §§ 7105 (West 1991).
To reopen a finally denied claim, a veteran must submit new and
material evidence. 38 U.S.C.A. § 5108 (West 1991). Evidence is
new when not merely cumulative of other evidence on the record.
Material evidence is relevant to and probative of the issue at
hand and of sufficient weight and significance that there is a
reasonable possibility that, when viewed in the context of all of
the evidence, both old and new, the additional evidence will
change the disposition of the claim. Vecina v. Brown, 6 Vet.App.
519, 522 (1994); Mintz v. Brown, 6 Vet.App. 277, 280 (1994);
Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991); see Manio v.
Derwinski, 1 Vet.App. 140, 145 (1991).
Therefore, the issue before the Board is whether the additional
evidence submitted by the veteran since the December 1947 RO
decision is both new and material in that it tends to establish
that he incurred a bilateral knee condition during service. In
determining whether new and material evidence has been submitted
to reopen a finally denied claim, consideration must be given to
all evidence since the last final denial on the merits rather
than limited to evidence received since the most recent denial of
reopening. Glynn v. Brown, 6 Vet.App. 523, 528-29 (1994).
Evidence submitted since last final decision on the merits,
namely, the December 1947 RO decision, consists of 1) additional
service medical records; 2) testimony offered at a personal
hearing in May 1992; 3) a letter from Ellis P. Singer, M.D. dated
in June 1992; and 4) medical records from Kenneth Bahrt, M.D.
dated from May 1986 to June 1987.
Additional service medical records were received which contain
one notation with respect to complaints of knee pain in August
1945. Significantly, the examiner found no abnormalities on
examination of the veteran's knees and an x-ray was interpreted
as normal. Therefore, these service medical records accordingly
fail to show that the veteran suffered from a bilateral knee
condition during service.
In May 1992, the veteran offered testimony at a personal hearing.
He testified that he began having problems with his knees during
service and was examined on several occasions. Of note, the
veteran did not describe any current knee condition which could
be related to his complaints during service. Rather, his
testimony was essentially cumulative and contained no persuasive
or objective evidence of the existence of a bilateral knee
condition during service.
In further support of his claim, the veteran submitted a letter
dated in June 1992 from Ellis P. Singer, M.D., who stated that
the veteran had been under his care since 1962. He commented
that the veteran's first complaints of musculoskeletal symptoms
were in February 1979. This evidence simply shows that the
veteran complained of musculoskeletal symptoms more than 33 years
following his discharge from service and adds nothing to the
crucial question of service incurrence of a bilateral knee
condition.
Also of record are medical records from Kenneth Bahrt, M.D. dated
from May 1986 to June 1987. A review of these records reveals
that the veteran was treated for pain and swelling in his hands
which had persisted for seven to eight years. A report of
treatment in May 1986 noted complaints of stiffness of his legs
and discomfort in his knees which radiated down to his ankles.
Dr. Bahrt observed mildly active synovitis and evidence of
earlier episodes of inflammatory changes, especially of the
wrists. Possible diagnoses included a palindromic type onset of
rheumatoid arthritis and crystal induced arthropathy. The
remainder of the treatment notes pertain primarily to hand and
wrist complaints. Importantly, Dr. Bahrt offered no opinion
linking his current findings to the veteran's complaints of knee
pain during service approximately 40 years earlier.
Although the foregoing evidence is new, as it has not been
previously considered by the RO, it is not material.
Specifically, the additional evidence, when viewed in the context
of all the evidence, both old and new, does not raise a
reasonable possibility of changing the outcome of the RO's
December 1947 denial of service connection. Rather, the evidence
merely shows that the veteran suffered from an arthritic
condition, primarily affecting his wrists, many years after his
discharge from service.
The Board observes that the veteran's representative has
requested that the veteran be afforded a VA examination in order
to determine the current nature and extent of his bilateral knee
condition. He has also alleged that the veteran was
disadvantaged in that the original denial of service connection
in December 1947 was based solely on an inadequate separation
examination. However, there is no indication that the veteran's
separation examination was cursory. The veteran complained of a
knee condition at the time of discharge and was accordingly
examined. Of note, the examiner's findings were consistent with
the numerous inservice examinations. In fact, great care was
taken to examine the veteran during service through numerous
consultations and it was ultimately found that he was going on
sick call without reason. Therefore, given the absence of any
knee disability during service, there is no basis to afford the
veteran a VA examination. Service connection may only be granted
for a disability resulting from disease or injury incurred in or
aggravated by active military service. 38 U.S.C.A. §§ 101(16),
1110 (West 1991). Hence, as there is no objective evidence that
the veteran suffered from a knee disability during service, a VA
examination is not warranted.
Therefore, as the additional evidence received since the December
1947 RO decision is not new and material in light of the
applicable laws, regulations and Court decisions, it does not
provide the required evidentiary basis to reopen the veteran's
claim.
ORDER
New and material evidence to reopen a claim for service
connection a bilateral knee not having been submitted, the claim
is denied.
JAN DONSBACH
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to be
assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting less
than the complete benefit, or benefits, sought on appeal is
appealable to the United States Court of Veterans Appeals within
120 days from the date of mailing of notice of the decision,
provided that a Notice of Disagreement concerning an issue which
was before the Board was filed with the agency of original
jurisdiction on or after November 18, 1988. Veterans' Judicial
Review Act, Pub. L. No. 100-687, § 402 (1988). The date which
appears on the face of this decision constitutes the date of
mailing and the copy of this decision which you have received is
your notice of the action taken on your appeal by the Board of
Veterans' Appeals.